Rodriguez-Barajas v. Holder, No. 09-60351

By FindLaw Staff on October 20, 2010 12:36 PM

Petition for Review of BIA Dismissal of Appeal Granted

In Rodriguez-Barajas v. Holder, No. 09-60351, a petition for review of a decision of the Board of Immigration Appeals (BIA), arguing that the BIA erred in holding that it lacked jurisdiction to hear petitioner's appeal because he had voluntarily left the country while his habeas corpus petition was pending in federal court, the court granted the petition where an alien subject to removal proceedings who voluntarily departs the U.S. after the BIA has issued a decision on his appeal, but while his habeas petition is pending, is not deemed to have withdrawn his appeal pursuant to 8 C.F.R. section 1003.4.

As the court wrote: "Rafael Rodriguez-Barajas petitions for review of a decision of the Board of Immigration Appeals ("BIA"), arguing that the BIA erred in holding that it lacked jurisdiction to hear his appeal because he had voluntarily left the country while his habeas corpus petition was pending in federal court. We must decide whether an alien subject to removal proceedings who voluntarily departs the United States after the BIA has issued a decision on his appeal, but while his habeas petition is pending, is deemed to have withdrawn his appeal pursuant to 8 C.F.R. § 1003.4 (2010). We conclude that the regulation does not apply to departures occurring after a BIA decision on appeal and while a habeas petition is pending, so the BIA has jurisdiction to review Rodriguez-Barajas's appeal."

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